Agrégateur de flux

Thank you alumna and appreciated co-author Jutta Gangsted for flagging Charles Price’s (former learned colleague of mine at Dibb Lupton Alsop) and Sébastien Popijn’s alert on the Belgian Supreme Court’s ruling of 8 February last in C.18.0354.N Happy Flights v Ryanair. Happy Flights are a Belgium-based online claim agency to which disgruntled passengers may assign claims for compensation under Regulation 261/2004.

At issue is the validity of Ryanair’s choice of court in its general terms and conditions, referring consumers to Irish courts. The Brussels Commercial court on 30 May 2018 seemingly first of all did not assess whether the agency may be considered a ‘consumer’ within the terms of the consumer title of Brussels Ia, having been assigned the consumers’ claims. This decision is unreported <enters his usual rant about the lack of proper reporting of Belgian case-law>.

The Supreme Court (at 2, line 47) notes this lack of assessment by the lower court. It does not however complete the analysis sticking religiously to its role to interpret the law only, not the facts. Per CJEU Schrems mutatis mutandis I would suggest an affirmative answer (the agency having been assigned the consumers’ rights): in which case the Article 25 analysis becomes redundant.

The Brussels Commercial court subsequently and again from what one can infer from the Supreme Court’s ruling, discussed the validity of choice of court under Article 25 Brussels Ia, reviewing its formal conditions (formation of consent) yet judging the material validity under the lex fori, Belgian law, not the lex fori prorogati, Irish law. This is a clear violation of A25 juncto recital 20 Brussels Ia. The Supreme Court suggests that the relevant Irish implementation of the unfair consumer terms Directive 93/13 does imply invalidity of the clause (again: if the claim is held to fall under the consumer title, this analysis will become superfluous).

The Court’s judgment unlike the understandably enthusiastic briefing by Happy Flight’s counsel does not quite yet mean that Ryanair’s terms and conditions on this issue have been invalidated. However it is likely they will be upon further assessment on the merits. As I note above first up there will be the issue of assignment rather than the issue of A25.

For your interest, I gave a Twitter tutorial on a related issue (consumer law, lex causae, compulsory referral to arbitration) recently.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.9, Heading 2.2.9.4.

Le juge de l’asile n’est pas lié par l’autorité de chose jugée s’attachant aux motifs d’un jugement définitif d’acquittement rendu par le Tribunal pénal international (TPI) tirés de ce que les faits reprochés ne sont pas établis.

en lire plus

Another HCCH Convention has recently reached the number of 100 Contracting Parties. In February and March 2019, two States joined the HCCH Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption (Intercountry Adoption Convention): Guyana (by accession) and Honduras (by ratification).

The Intercountry Adoption Convention will enter into force for Guyana and Honduras on 1 June 2019 and 1 July 2019, respectively. The status table is available here.

As announced, Guyana and Honduras are the first States in the Americas to become a party to all four modern HCCH Children’s Conventions. In addition to the Intercountry Adoption Convention, the other modern HCCH Children’s Conventions are:

• the HCCH Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (Child Abduction Convention);
• the HCCH Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (Child Protection Convention); and
• the HCCH Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance (Child Support Convention).

There is also a Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations but neither of them is yet a party.

The other two Hague Conventions that have reached 100 or more Contracting Parties are the Child Abduction Convention (see my previous post here) and the HCCH Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents (Apostille Convention). The latter has 117 Contracting Parties, the latest one being the Philippines (to enter into force on 14 May 2019 see here).

The HCCH news item is available here.